Anyone familiar with the sport of golf knows the game’s reputation for slow play, so it’s hardly coincidental that the completion of the rezoning process for the Brandywine Country Club seems to be taking longer than a duffer struggling to break 100 on the back nine.
A New Castle County Planning Board hearing on Sept. 13 set a clear tee to green path for a possible conclusion in November, but the developer, Capano Management, shanked its final drive off the fairway into a legal sand trap, making it likely that the nearly 6-year-old saga won’t reach its conclusion for another two months – or possibly longer.
At stake is the proposal by a Capano subsidiary, Shipley Road Investments LLC, to build 300 apartments and 65 single-family homes – 41 detached units and 24 attached – on just over 67 acres of the 111-acre Brandywine Hundred site, bordered by Shipley Road on the east and the Capano-owned Concord Square shopping center along Concord Pike (U.S. 202) on the west. If the rezoning is approved, Capano would donate the remaining 44 acres of the site to the Brandywine School District, which wants to build an early learning center that would serve up to 500 preschool children.
In October, after reviewing the extensive filings in the matter and testimony from the hearing, the Planning Board issued three related rulings.
The first ruling authorized a modification in deed restrictions for the shopping center, allowing demolition of a portion of the shopping center, and construction of two new buildings on the site, to create an access road from Concord Pike into the proposed community.
The second ruling granted conditional approval of the rezoning, which would normally be enough to allow the project to proceed.
However, the third ruling involved a request by Capano for a variance from the county’s subdivision rules – a variance that would permit Capano to build the community with only one entrance-exit road – the one from Concord Pike through the shopping center. County rules require two entrance/exit routes from residential areas that have more than 300 housing units, and Capano’s initial design included an entrance from Shipley Road, an idea strongly opposed by many area residents. The nine-member Planning Board, following the recommendation of the county’s Land Use Department, unanimously voted to deny the requested variance.
What happens next is up to Capano, according to Richard Hall, general manager of the Land Use Department.
“The simplest, quickest, cheapest route,” says one attorney familiar with the case, would be to appeal the Planning Board’s decision directly to New Castle County Council.
That’s what Capano is doing.
“If they get the variance [by winning the appeal], they’re good to go,” Hall said. County Council would still have to approve the rezoning, but it rarely rejects rezonings endorsed by Land Use and the Planning Board.
The earliest the council could hear an appeal would be Tuesday, Dec. 14. “I’m sure the applicant wants to move it along,” Hall said.
But John Tracey, Capano’s land use attorney, said the December date would be “too early.” Karen Hartley-Nagle, the council president, said the hearing will not be held until at least January. Once the Shipley Road access issue is resolved, the council would then have to vote on the rezoning itself – adding another month, at a minimum, to the timeline.
For the developer to prevail on the appeal, it would have to convince the council that the Planning Board or the Land Use Department erred in applying the county’s laws and regulations in reviewing the matter. Because the appeal is judicial in nature, members of the council have been directed not to make any public comments on the matter before the hearing, Hartley-Nagle said.
While members of the council have been directed to hold their tongues, others are not subject to any restrictions.
Tracey, who would be in the best position outline Capano’s thinking, wrote in an email that, other than appealing the variance denial, one option would be “redesigning the site to eliminate the need for the requested variance.”
The simplest redesign, according to Hall and others following the process, would be for Capano to return to the original plan – with access to the community from both Concord Pike and Shipley Road. While that would put the plan in compliance with county regulations, it would once again rile up area residents who have opposed the project.
The problem with the Shipley Road access point – which would have provided a through route into Concord square and onto Concord Pike – is that many residents of developments near the country club site say it would make Shipley Road more congested and less safe as motorists would use the new road as an alternative to the heavily traveled Silverside Road and Naamans Road.
Restoring the Shipley Road access point would “outrage the community,” says R.J. Miles, president of the Council of Civic Organizations of Brandywine Hundred (CCOBH), which has built a strong reputation in the last 40 years for prodding developers to modify their plans to satisfy area residents who fear the impact of major construction projects.
“Capano has alternatives,” he says.
But neither of two access options Miles mentioned would be easy to accomplish.
One would be to secure access to Silverside Road through the Talleyville Shopping Center, located at the intersection of Silverside and Concord Pike. But the shopping center’s owners aren’t interested in making this connection, their attorney, Chris Simon, told the Planning Board.
The other possibility would be to negotiate with Widener University, whose law school borders the northwest corner of the proposed community, to create a second access roadway connecting to Concord Pike.
Capano, Miles noted, also has an option that would eliminate the need for two access roads – reducing the size of the subdivision to 300 units or less. “He’d be losing 60 houses, but the real money [for a developer] is in the apartments,” Miles claims.
Tracey’s mention in his email to Delaware Public Media of a possible redesign of the project hints at the possibility of downsizing the project, but he declined an interview request to discuss that scenario.
Shrinking the project to fewer than 300 units could eliminate the need for further reviews by the Land Use Department because, other than the access route, the plans already satisfy the other requirements of the county’s Unified Development Code, according to Janet Vinc, a Land Use planner. On the other hand, Vinc said, if Capano were to shift gears and propose even more housing on the site, that would trigger a more extensive county review.
Left dangling while the rezoning proposal awaits those final decisions early next year is the fate of Capano’s anticipated donation of 44 acres to the Brandywine School District. “That’s part of the package,” Hall says.
“There hasn’t been an official offer of the land yet,” says Jason Heller, a Brandywine Board of Education member who lives less than a mile from the country club site. “Everything is hypothetical at this point.”
Donating the land, which might have otherwise remained as some form of open space, provides another benefit for Capano. State law requires developers to pay something called a “voluntary school assessment,” or VSA, when they build housing that is anticipated to result in enrollment increases beyond the current capacity of local schools. Capano’s plan for the country club site could trigger a VSA payment to the school district estimated at $2 million to $3 million, but the value of the donated land could offset much or all of the assessment, school officials said.
“There hasn’t been an official offer of the land yet. Everything is hypothetical at this point.”Jason Heller, Brandywine Board of Education board member
Also, the donation helped build support for the rezoning. According to the Land Use/Planning Board recommendation report on the rezoning, eight speakers, including members of the school board and the district administration, spoke in favor of the rezoning at the public hearing in September. The report also noted that Land Use received 465 letters concerning the rezoning, with 292 favoring the plan, and those letters “mostly focused on the donation of land.”
Securing the land for free would be a rare benefit for the school district, since open space is at a premium in well-developed Brandywine Hundred.
Also, the school district notes that the state has already committed $26 million to the project and will pay the entire cost of construction, estimated at $49 million, because the proposed school would serve children who either have disabilities or who are not enrolled in a preschool program within the district. Although planning is now in a preliminary phase, the district has said it expects the school’s offerings to include “wraparound services,” like medical, orthopedic, dental and vision care, at the facility through partnerships with state agencies and providers like Nemours Children’s Health, ChristianaCare and St. Francis Hospital.
The proposed land donation is a win-win, Heller says, because it “cuts a chunk of the housing away … lowering its impact on the community” and gives the district “a once-in-a-lifetime opportunity” to reduce crowding at its Bush Early Learning Center.
“The neighbors are torn. You can’t say ‘I don’t want a school’ because they will label you as not wanting to help special needs kids. But they need 15 acres, not 44.”R.J. Miles, president of the Council of Civic Organizations of Brandywine Hundred (CCOBH),
Miles, citing early community desires to have Capano set aside significant acreage as open space, says Capano used the offer of donating acreage for the school to provide leverage to support the rezoning, with school district residents who don’t live near the site writing letters in favor of a rezoning that would not affect them as directly as it would the residents of developments along Shipley Road.
He is also upset that the district stands to acquire 44 acres when it needs only about one-third as much to build the school.
“The district never requested any land. This was a possibility that was brought to the district,” Heller says. Also, he says, other Brandywine school sites have large areas available for public use and “it would be disingenuous to think anything different would occur” at any schools built in the future.
Plans for the school, whenever they are ready, would have to be reviewed by the county, and with access likely to be from Shipley Road only, area residents can be expected to raise anew their concerns about traffic.
While the outcome of the rezoning process is currently unclear, Miles believes it is inevitable that Capano will win approval and that the school district will receive land that area residents would rather see preserved as open space.
“The neighbors are torn,” he says. “You can’t say ‘I don’t want a school’ because they will label you as not wanting to help special needs kids. But they need 15 acres, not 44.”
